Shumate v. Engram et al

Filing 13

ORDER by Judge Robert M. Illman denying 9 Motion to Amend/Correct; denying 10 Motion to Amend/Correct; denying 11 Motion to Appoint Counsel; denying as moot 12 Motion for Leave to Proceed in forma pauperis. Amended Complaint due by 4/21/2025. (rmilc2, COURT STAFF) (Filed on 3/12/2025)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

BENJAMIN T. SHUMATE,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 24-cv-06901-RMI
ORDER

v.

Re: Dkt. Nos. 9, 10, 11, 12
EDDIE ENGRAM, et al.,
Defendants.

12
13

Plaintiff, a detainee, filed a pro se civil rights complaint under 42 U.S.C. § 1983, and then

14

an amendment. The court dismissed the complaint and amendment with leave to amend and

15

provided Plaintiff an opportunity to file a second amended complaint. Plaintiff filed a second

16

amended complaint (dkt. 8) and then a motion to amend regarding the Defendants (dkt. 9), a

17

motion to supplement the record (dkt. 10), and a motion to appoint counsel (dkt. 11).

18

Plaintiff’s second amended complaint follows some of the instructions set forth by the

19

court in the screening order, but Plaintiff fails to identify many of the specific Defendants and

20

describe how they violated his constitutional rights. Plaintiff’s motion to amend then removes

21

many of the Defendants and seeks to add several unidentified Defendants. The court cannot

22

determine from the filings what individual Defendants are responsible for the alleged

23

constitutional violations.

24

Plaintiff’s second amended complaint is dismissed without prejudice and Plaintiff may

25

refile a second amended complaint that focusses on a few related claims and Plaintiff must

26

identify the specific Defendants and describe how they violated his constitutional rights. It is

27

insufficient to just allege that jail staff violated his rights. Plaintiff must also present all of his

28

allegations in one second amended complaint. He may not submit multiple filings.

1

Plaintiff also requests the appointment of counsel. There is no constitutional right to

2

counsel in a civil case, Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981), and although

3

district courts may “request” that counsel represent a litigant who is proceeding in forma pauperis,

4

as plaintiff is here, see 28 U.S.C. § 1915(e)(1), that does not give the courts the power to make

5

“coercive appointments of counsel.” Mallard v. United States Dist. Court, 490 U.S. 296, 310

6

(1989).
The Ninth Circuit has held that a district court may ask counsel to represent an indigent

United States District Court
Northern District of California

7
8

litigant only in “exceptional circumstances,” the determination of which requires an evaluation of

9

both (1) the likelihood of success on the merits and (2) the ability of the plaintiff to articulate his

10

claims pro se in light of the complexity of the legal issues involved. Terrell v. Brewer, 935 F.2d

11

1015, 1017 (9th Cir. 1991). Plaintiff has presented his claims adequately and the issues are not

12

complex. The motion is denied.

13

For the foregoing reasons:

14

1. The second amended complaint is dismissed without prejudice and Plaintiff may refile

15

the second amended complaint within twenty-eight (28) days of the date this order is filed.

16

Plaintiff must include in it all the claims he wishes to present. See Ferdik v. Bonzelet, 963 F.2d

17

1258, 1262 (9th Cir. 1992). The second amendment complaint and exhibits may be no longer than

18

25 pages. Plaintiff’s motion (dkt. 10) to supply 400 extra pages is DENIED. Plaintiff may not

19

incorporate material from the prior Complaints by reference. Failure to amend within the

20

designated time will result in dismissal of this case. The motions to amend and appoint counsel

21

(dkts. 9, 11) are DENIED without prejudice. The motion to proceed in forma pauperis (dkt. 12) is

22

DENIED as moot because Plaintiff is already proceeding in forma pauperis.

23

2. It is Plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

24

informed of any change of address by filing a separate paper with the clerk, headered “Notice of

25

Change of Address,” and must comply with the court’s orders in a timely fashion. Failure to do so

26

may result in dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil

27

Procedure 41(b).

28

//
2

1
2

IT IS SO ORDERED.
Dated: March 12, 2025

3
4
ROBERT M. ILLMAN
United States Magistrate Judge

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3